Gambar halaman

already cited. The case was well prepared and most ably presented, and I regret that I am not better able to do justice to a question of so much importance. It is not the business of courts to make contracts for parties, but only to enforce them. If a forfeiture has been clearly and explicitly stipulated, it must be de. clared in a proper case according to the condition, and a party cannot justly complain of hardship from it, or ask relief against it, where as in this case, he has suf. fered voluntary default. The assured must be presumed to know and understand the various provisions of forfeiture in his own policy by which he may suffer loss through his own fault or negligence. We cannot but hold that the learned county judge erred in his instructions to the jury on the meaning or construction of this policy. The judgment of the County Court is revers

ersed, and the cause remanded for a new trial.

Cassoday, J., took no part.




In Russum v. St. Louis M. Life Ins. Co. (St. Louis Court of Appeals), 5 Big. Ins. Cas. 243, the policy was precisely like the present one, and it was held in an elaborate and learned opinion by Judge Grant, that the entire policy is forfeited on failure to pay interest on the notes. The learned author of these reports, in a note appended to this case in which other cases are reviewed, sums up the result of his investigations on this question as follows: "(1) This provision on the face of the policy of life insurance, that it will be forfeited for failure to pay interest on a premium note as agreed, will be respected and enforced in a court of law; (2) equity will in proper cases afford relief from such a forfeiture, and enforce a settlement between the parties, such as will preserve the rights of both.” It may here be observed that if the assured in certain or proper cases, where the performance became impossible, or a great hardship, may be allowed some equitable compensation for his investment of payments for a certain part of the time of the insurance, by what rule of equity or of law can the court say that such compensation shall consist of a proportion of the insurauce under another stipulation of the contract, made with no reference to the non-payment of interest, but only of premiums? In the first class of cases there is some consistency in holding that the non-payment of the interest worked a forfeiture of the whole policy in law, but that in equity the assured should be allowed some reasonable compensation, to be determined by the peculiar circumstauces of the case.

In Moses v. Brooklyn Life Ins. Co., 50 Ga. 196, the policy provided for a two-years' policy on the payment of all the premiums for that time. For a part of such premiums notes were given. The condition of entire forfeiture was the failure to pay the premiums or the notes, or any part thereof when due. The dividends were to be applied to the payment of the notes, but there was a balance of such notes unpaid. The plaintiff brought his bill equity for a paid-up two-years' policy. The court dismissed the bill ou the ground of such non-payment of the notes.

In Smith v. St. Louis M. L. I. Co., 2 Tenn. Ch. 727, the condition was the payment of the interest on the notes annually in advance, and it was held that a failure to so pay according to the condition worked a forfeiture, but that the dividends might, under that policy, be applied upon the interest; and the court held the case to inquire whether such dividends as the insured was entitled to would be sufficient to discharge the interest. This was like the case of Hull v. The Sume Company, 39 Wis. 397, in which it was provided that the dividends were first to be applied to the payment of the interest, and in that case the dividends exceeded the interest. It was a very different policy from this in many material respects, and may liave been very properly called a nou-forfeitable policy. The case of this Same Company v. Ross, 63 Ga. 199, follows the Hull case, in passing upon a policy containing the same provisions.

Iu Knickerbocker Ins. Co. v. Harlan, 56 Miss. 512, the condition of forfeiture for non-payment of interest was no stronger than in this policy, and not repeated as in this, and it was held imperative, and that the non-payment of the interest worked a complete forfeiture of the policy and of the whole insurance. In this case the Grigsby case is disapproved, as well as by five of the above cases holding the same rule.

In Putch v. Phænir lus. Co., 44 Vt. 481, the same doctrine is held in respect to the same condition. Atty. Gen. of N. Y. v. North America L. 1. Co., 82 N, Y. 172, is to the same effect.

A sufficient number of cases on both sides of the question has been cited and examined, and other cases cited in the respective able briefs of the counsel will add nothing to the weight or reasoning of the cases

GRANT V. SLATER MILL AND Power Co.* A local act of the Legislature affecting the city of Provi.

dence provided that “every building already built or hereafter to be erected in which twenty-five or more operatives are employed in any of the stories above the second story, shall be provided with proper and sufficient, strong and durable, metallic fire escapes or stairways constructed as required by this act, unless exeinpted therefroin by the inspector of buildings, which shall be kept in good repair by the owner of such building, and no person shall at any time place any incumbrance upon any such fire es

capes." Plaintiff, who was employed as an operative in a building

subject to the act, was compelled by a fire to jump from an upper window and thereby suffered injuries, there being no fire escape on the building, and brought trespass on the case against the owner of the building to recover damages for his injuries, alleging the owner's violation of the

duties imposed by the act. Held, that the action could not be maintained. That the scheme of the act was to secure safe structures as a

police measure and for the general safety. Held further, that it was not the scheme of the act to create

any duty which could be made the subject of an action by individuals, and that no remedy in favor of individuals beyond what is expressly given in the act should be im. plied for mere neglect to perform the duties created by

the act. RESPASS on the case. On demurrer to the dec

laration. The plaintiff's declaration stated that the defendant corporation owned and rented a building in which he was employed as an operative, that the defendant veg. lected to comply with the provisions of Pub. Laws R. I., ch. 688 of April 12, 1878, although subject to these provisions, in consequence of which the plaintiff was compelled by a confiagration in the building to leap from a window in av upper story in order to save his life; that his leg was fractured in the leap, and amputation became necessary.

So much of the act as is involved in the case is ro cited in the opinion of the court.

Spooner, Miller & Brown, for plaintiff.

Charles Hart, Benjamin T. Eames & Stephen A. Cooke, Jun., for defendant.

*To appear in 14 Rhode Island Reports.


DURFEE, C. J. This is case to recover damages for which the remedy in equity would be so clearly inadeinjuries to the plaintiff caused by a destructive fire, quate that it could not be presumed to have been iv. which occurred November 21, 1882, in a building be- tended to exclude the common-law remedy by action longing to the defendant corporation, in which the on the case. plaintiff was employed as an operative. The action is It is evident however that the act here was designed founded on Public Laws R. I., ch. 688, S 23 of April 12, primarily as a police regulation avd only incidentally, 1878, entitled “An Act in relation to buildings in the if at all, for the benefit of particular persons or classes city of Providence and for other purposes.” Section 23 of persons. It is when there is or may be a combinais as follows, to wit:

tion of both purposes that the difficulty arises. ** Section 23. Every building already built, or here- In such a case, says Judge Cooley, the question of after to be erected, in which twenty-five or more civil liability for neglect of duty can only be deteroperatives are employed in any of the stories above mined by a careful consideration of the statute. the second story, shall be provided with proper and Cooley on Torts, 681. This too is the doctrine euunsufficient, strong and durable metallic fire escapes, or ciated in Atkinson v. New Castle Waterworks Co., L. stairways constructed as required by this act, unless R., 2 Exch. Div. 441. There an act incorporating a exempted therefrom by the inspector of buildings, company for the purpose of supplying a town with which shall be kept in good repair by the owner of water gave certain powers and imposed certain duties, such building, and no person shall at any time place among wbich was the duty of keeping a number of any incombrance upon any such fire escapes."

fire plugs, so called, always charged for service in case The declaration avers that the building which was of fire. The company neglected to keep the fire plugs burnt was four stories high, and that more than charged, and the plaintiff's house, situated near one of twenty-five operatives were employed in each of the them, was destroyed by fire. He sued the company two upper stories. The declaration also alleges that for damages, alleging that he had lost his house in consaid third and fourth stories were rented for work- sequence of the neglect. The act gave no civil comshops for manufacturing purposes by the corporation; mon-law remedy, but prescribed penalties. Some of that the operatives were employed by the tenants; the penalties were purely public, the penalty for neg. that the corporation rented the said stories knowing lect to keep the fire plugs charged being such. Forthere were more than twenty-five operatives employed feitures of forty shillings a day were however given to in each of them; that it derived great gains from the rate payers entitled to water for neglect to supply renting thereof, and that it thereby became subject to them. The court held that the company was liable to the duties imposed by the act. The corporation de- individuals only for these forfeitures, and consequently murs to the declaration and contends that it is not not liable to them at all for neglecting to keep the fire liable to the action.

plugs charged. The question raised is one of great difficulty, as the The judges, Cairns, L. C., Cockburn, C. J., and question of civil liability is apt to be under such a Brett, L. J., all of them doubted the correctness of the statute. Cooley on Torts, 650, 651. The act expressly rule laid down in Couch v. Steel, 3 El. & B. 402, namely, gives two remedies. Section 37 provides that any per- that wherever a statutory duty is created, any person son violating any provision of the act, wherein no who can show that he has sustained injuries from the other penalty is prescribed, shall be fined twenty dol- non-performance of that duty, can bring an action for lars for every violation, and not exceeding twenty dol- damages against the person on whom the duty is imlars for every day's continuance of the violation after posed. service of warrant in the first complaint. The same Lord Cairns expressed the opinion that the question section also provides that the Supreme Court may re- of liability must, to a great extent, “depend on the strain by injunction any violation of the act and may purview of the Legislature in the particular statute according to the course of equity secure the fulfillment and the language which they have there employed.” and execution of the provisions thereof. The fines, The authority of the case as a precedent however is when recovered, are directed to be paid into the city qualified by the fact that the act there was a private treasury. If the remedy by fine were the only remedy act, “in the nature of a legislative bargain," and the given, the inference would be, as decided in Aldrich v. court considered it to be entitled to a stricter interHouard, 7 R. I. 199, that it was intended only as pun- pretation on that account. Nevertheless the case is ishment for the public offense, and the remedy by ac- very instructive, for the real pith of it is this, that the tion on the case in favor of persons specially imposed, Legislature had expressed itself on the subject of if such remedy were proper, would not be excluded. remedies, giving a limited remedy to individuals, and But in this respect the case at bar differs from Aldrich that therefore no other remedy in favor of them v. Howard, for in the case at bar there is the remedy could be implied. The same reasoning is applicable to by suit in equity which is not purely a public remedy. the case at bar; for here the Legislature has expressed The question therefore is whether two remedies being itself on the subject of remedies, and given an equitgiven, one of which is not necessarily solely for the able remedy which is applicable in favor of individuals public, it is not to be presumed that they were in- as well as of the public. Shall we say that still another tended to be the only remedies. The familiar rule is, remedy may be implied or shall we hold to the maxim, where a new right is created or a new duty imposed by expressum facit cessare tacitum. statute, there if a remedy be given by the same statute An examination of our act discloses peculiarities for its violation or non-fulfillment, the remedy given which ought not to be disregarded. The act was is exclusive.

passed by the General Assembly on the last day of its Is this rule inapplicable to the case at bar? Or to January session, 1878, and went into effect ten days put the question in another form, is the case at bar an after its passage. It is difficult to believe that the exception to the rule? If it be, it is because the rem- General Assembly can have expected that all the edy in equity, being purely preventive, is no remedy buildings within the purview of section 23 could be for an injury already incurred. The answer to that is, furnished with fire escapes or stairways as required by if the preventive remedy had been resorted to in sea- the act within so short a time, or can have intended, Bon, no injury would have been incurred.

that if not furnished, their owners should be liable We are not prepared to say that the answer is en- civilly as well as criminally for not furnishing them. tirely satisfactory, nor are we prepared to say that a Again section 23 declares that the fire escapes and statute might not be enacted, especially if it were en- stairways shall be furnished but does not declare by acted simply for the benefit of particular persous, uuder whom they shall be furnished; it only declares that they shall be kept in repair by the owner. If a build- that therefore no remedy for individuals, beyond that ing be let, why should the owner rather than the les- which is expressly given, should be implied for any see be required to furnish the fire escape, when it is mere neglect of the duties imposed by the act. We do the lessee who creates the necessity for it by employ- not consider that in so holding we are overruling the ing twenty-five or more operatives in some story above decision of this court in Aldrich v. Howard, 7 R. I. 199; the second ? It might be plausibly argued that the for there no remedy whatever was given which was matter was purposely left uncertain so that the liabil- available for individuals, and moreover the action was ity to the duty might be determined and enforced in Bot for any mere neglect of duty, but for a transgresequity. The uncertainty on this point affords an argu- sion which made the building complained of illegal, ment, to say the least, that no civil liability was in- and so a standing nuisance from which the plaintiff tended except such as could be enforced by the equit- was suffering a continuing injury. The court in its ·able remedy provided by the statute; for certainly the decision in Aldrich v. Howard, following Couch v. General Assembly would have made clear who is to Steel, laid down the law more broadly than was necesperform the duty if it had meant to have the neglect sary for the decision, and more broadly too than would of it entail so incalculable a liability. Further it will now be sustained by the English courts, unless the be observed that the duty does not attach unless there comments on Couch v. Steel, made by Lord Cairns and are at least twenty-fire operatives einployed in some Lord Cockburn in Atkinson v. Newcastle Materirorks story above the second. Now if the owner be subject Co., are very misleading. See also Addison on Torts, to the duty, even when the building is let, the lessee of 67; Stevens v. Jeacocke, 11 Q. B. (N. S.) 731, 741; Flynn an upper story, employing less than twenty-five oper- v. Canton Co. of Baltimore, 40 Md. 312; Heeney r. atives there, has it in his power, by adding to the Sprague, 11 R. I. 156. number, to expose the owner to this tremendous lia

Demurrer sustained. bility, and unless notice be necessary, which if the liability exist, is extremely doubtful, to say the least, he may expose him at any time without notice of the ex

UNITED STATES SUPREME COURT ABposure. It cannot be supposed that the General As

STRACT. sembly intended this. The plaintiff contends that the duty was imposed

JURISDICTION-AMOUNT IN DISPUTE.-The value of particularly for the benefit of the operatives, and that therefore if any operative be injured by the neglect of

two sections of land which are in dispute is conceded it, he ought to have his action for damages for his in

to be more than $5,000. The complaint alleges a joint jury. This view however is not so clear as at first

entry and ouster, and the answer does not set up sepblush it seems.

arate claims to distinct parcels of the land by the serUndoubtedly if there be a fire escape on a building

eral defendants. The judgment for the recorery of where there are operatives, they will have a right to use

the possession is against all the defendants jointly. In it in case of fire; and so we apprehend, will any other

this respect the case is entirely different from those of person who happens to be there, bave as good a right

Tupper v. Wise and Lynch v. Bailey, 110 U. S. 398; 2 as the operatives, which they would not hare if the

NY. Sup. Ct. Rep. 26, 27. We bave jurisdiction there

fore. Friend v. Wise. Opinion by Waite, C. J. fre escapes were required particularly for the operatives. If in a building six stories high there were

[Decided May 5, 1884.] twenty-five operatives in the third story, making the TRUST-PROCEDURE-GENERAL GUARDIAN OR GUARfire escape necessary under the act, the fire escape, we DIAN AD LITEM-STATE LAW--EXECUTOR AND TRUSTEE think, would have to go to the top, if the building was WHEN ONE CAPACITY CEASES AND ANOTHER BEGINS. occupied to the top, though there were not so many as -What was the proper method of proceeding against twenty-five in either of the bigher stories. Moreover defendants, whether by general guardian or guardian the inspector of buildings has a right to exempt any ad litem, is a question local to the law of the jurisdicbuilding from the operation of section 33, though it tion, and in the proceeding under review, was passed would otherwise be subject to it. It seems improb- on by the State court. It found in the decree that able that the inspector would have this power if the “the said minors were duly represented by their guarduty was imposed particularly for the benefit of the dians," and that finding cambot be questioned collatoperatives. The inference is that the General Assem- erally, as it is not a question of jurisdiction. Coit r. bly regarded the duty as a duty to the public, and Haven, 30 Conn. 190; Christmas v. Russell, 5 Wall. 290; therefore empowered the inspector as the representa- | Thompson v. Whitman, 18 id. 457. It seems to be in tive of the public to remit or exact it. Section 6 of the accordance with the general practice in Connecticut act charges the inspector with the duty of executing for a general guardian to be made a party and to deits provisions.

fend for his ward, and that in such cases the appointSection 23 is only one of a multitude of provisions ment and appearance of a guardian ad litem are not contained in the act in regard to buildings and their

necessary. Reeves Dom. Rel. 267; 1 Swift's System, construction in the city of Providence. The obvious 217; 1 Swift's Digest, 51; Wilford v. Grant, Kirby, 114. purpose wils to secure good, safe, and durable houses, In the original bequest to the children of Christopher as a measure of police, for the general security. We Colt in the will of amuities for education and support do not discover any indications of regard for particu- during minority, and 100 shares of stock, payable on jar persons, or classes of persons, except the ambigu- / arriving at age, there are no words creating a trust; ous indication which we have already considered. The and yet the executors in the meantime were bound to act is local and therefore not to be extended by con- them, in respect to these benefits and interests, as exstruction further than the well-established canons re. ecutors, and yet in trust, quite as much as they were, quire. Evidently the inspector of buildings was m respect to the 500 shares, by the words of that bemainly relied on to carry it into effect. The remedy quest. As long as personal property is held by execuby penal prosecution and the remedy in equity are tors as part of the estate of the testator, for the pasclearly his only weapons. Undoubtedly the remedy ment of debts or legacies, or as a residuum to be disin equity is available in a proper case to individuals. tributed, they hold it by virtue of their office, and are It seems to us that further than this, to quote the accountable for it as executors; tbat liability only language of Lord Cairns, “it was no part of the scheme ceases when it has been taken out of the estate of the of this act to create any duty which was to become the testator and and appropriated to and made the propsubject of an action at the suit of individuals," and erty of the cestui que trust. Bond v. Graham, 1 Hare,

482, 484; Arthur v. Hughes, 4 Beav. 506; Penny v. decision within the meauing of those terms as used in Watts, 2 Phil. Ch. Cas. 153; Hall v. Cushing, 9 Pick. sections 702 and 1911 of the Revised Statutes regulat95; Dorr v. Wainwrigbt, 13 id. 328; Towne v. Ammi- | ing writs of error and appeals to this court from the down, 20 id. 540; Newcomb v. Williams, 9 Metc. 525; Supreme Court of the Territory. Section 702 provides Conkey y. Dickinson, 15 id. 51; Prior v. Talbot, 10 for the review of final judgments and decrees by writ Cash. 1; Miller y. Congdon, 14 Gray, 114; Adams on of error or appeal, and section 1911 regulates the mode Egnity, $ 251. "And it may be here observed," says and manner of taking the writ and procuring the alWilliams on Executors, 1796, pt. 4, bk. 2, ch. 2. $ 2, lowance of the appeal. The use of the term "final de" that when personal property is bequeathed to execu- cisions” in section 1911 does not enlarge the scope of tors, as trustees, the circumstance of taking probate of the jurisdiction of this court. It is only a substitute the will is in itself an acceptance of the particular for the words “ final judgments and decrees” in sectrusts. Therefore where the will contains express di- tion 702, and means the same thing. The dismissal of rections what the executors are to do, an executor who the writ was a refusal to hear and decide the cause. proves the will must do all which he is directed to do The remedy in such a case, if any, is by mandamus to as executor, and he cannot say, that though executor, compel the court to entertain the case and proceed to he is not clothed with any of those trusts." Lewin its determination, not by writ of error to review what on Trusts, 156. Decree affirmed. Colt v. Colt. Opin- has been done. Ex parte Bradstreet, 7 Pet. 647; Ex ion by Matthews, J.

parte Newman, 14 Wall. 165. Dismissed. Crawford v. [Decided May 5, 1884.]


[Decided May 5, 1884.) SUIT TO RECOVER FINE-CANNOT ATTACK JURISDICTION.-One who has been convicted and fined by mili

UNITED STATES CIRCUIT AND DISTRICT tary commission for defrauding the government, and has conceded that his debt to the government exceeds

COURT ABSTRACT.* the tine, and been given credit on the debt to this

SHIP AND SHIPPING-LIEN FOR ADVANCES--NONE IN amount, cannot subsequently attack the jurisdiction

FAVOR OF CO-OWNER.- The plaintiffs, citizens of New of the court which convicted him in an effort to recover

York, bring this bill against certain citizens of States the fine from the government. The claim of appellant

other than New York for an adjustment of accounts is entirely without merit. Under the findings of fact,

between the common owners of the schooner which this court must accept as true, it is unnecessary

Jennie B. Gilkey. The plaintiffs allege that they made to consider any question involving the authority and

certain advances for the benefit of the defendants, to jurisdiction of the military commission before which

enable the vessel to perform her last voyage and earn the claimant was arraigned, and by means of which

her freight; and made certain other payments in dethe government compelled him to pay into its treasury sending and compromising an action brought against the sum of $90,000; for if it were conceded that Carver

the owners in New York for the wages of the mate. was not subject to be tried in that mode, and that the en

They now move for a preliminary injunction to retire proceedings against him were illegal and void, it

strain the defendants from receiving from the registry Fet appears that after his release he voluntarily con

of the District Court their several shares of the proceded that there was justly due from him to the gov

ceeds of the vessel, amounting, after payment of the ernment a larger sum than he bad paid; and upon the basis of that concession he secured a credit upon his privileged debts, to about $2,900. The plaintiffs admit

that they have no privilege in admiralty, nor any accounts for the amount he had so paid, receiving out

right as creditors at large, having recovered no judgof the balance admitted to be due from and chargeable ment, to intercept these proceedings; but they insist to him the sum of $1,414.45. We can imagine no rea

that in equity one part owner has a lien upon the ship son why it was not competent for him, without refer

for advances which he may have made for supplying ence to the legality of the proceedings before the mili

her needs for a voyage, or for the benefit of his cotary commission, to come to an understanding with

owners in any other respect. This brings up the questhe authorized officers of the government, substantially

tion whether the decision of Lord Hardwicke in Dodupon the basis suggested by him and acceded to by dington v. Hallett, 1 Ves. Sr. 497, is to be taken as law them. Even if the original payment to the govern

here. It was long since overruled in England. See ment was under duress, he had the right sub

E.c parte Young, 2 Ves. & B. 242, and 2 Rose, 78, note; sequently to agree, as he did, that what the

Ex parte Harrison, id. 76; Ex parte Hill, 1 Madd. goverument coerced him to pay was in fact fairly due 61; Green v. Briggs, 7 Hare, 279, per Wigram, V. C.; upon a proper settlement of his accounts. And when, Lindl. Partn. (4th Eng. ed.) 67. In this country it has by way of supplement to and in execution of that

been held in the courts of New York and Kentucky to agreement, he accepted as compensation for his ser

announce a sound rule of equity, Mumford v. Nicoll, vices, or as a gratuity, a portion of the balance justly | 20 Johns. 611; Hewitt v. Sturdevant, 4 B. Mon. 453 ; due from him, he is estopped to raise any question as

Pragoff v. Heslep, 1 Am. Law Reg. 747. In some other to the legality of the methods employed to collect from

courts the later English rule has been thought the more him what should have been paid without compelling sound. Merrill v.Bartlett,6 Pick.46; Pattou v.The Ranthe government to expend for its collection the large dolph, Gilp. 457; 3 Kent, 40; Story, Partn., $$ 442-444, sum that was allowed Moulton for his services. The and notes; Story Eq. Jur., $ 1442, and note. In this Cirjudgment is affirmed. Carver v. United States. Opin- cuit two judges of the Supreme Court have said ihat a ion by Harlau, J.

part owner has no lien or right of' priority in equity [Decided May 5, 1884.]

upon the ship itself for a balance of account which JURISDICTION—“FINAL JUDGMENT OR DECISION"- may be due him. Macy v. De Wolf, 3 W. & M. 193; R. S., SECS. 702, 1911—MANDAMUS.-This motion is The Larch, 2 Curt. C. C. 427, 434. Cir. Ct., Dist. Mass. granted on the authority of Insurance Co. v. Com April 28, 1884. The Jennie B. Gilkey. Opinion by stock, 16 Wall. 258, and Railroad Co. v. Wiswall, 23 id. | Lowell, J. 507. An order of the Supreme Court of Washington

PATENT-ISSUED HERE AND IN CANADA-VOID IN Territory dismissing a writ of error to a District Court, CANADA – EFFECT HERE CONSTRUCTION FOREIGN because of the failure of the plaintiff in error to file the

STATUTE.— A statute of another country, when considtranscript and have the cause docketed within the time required by law, is not a final judgment or a final

*Appearing in 20 Federal Roporter.


ered by our courts, carries the construction given it reasonable diligence in performing his part. by the courts of that country. In Elmendorf v. Tay- We think that the contract which the law implies is lor; 10 Wheat. 159, Chief Justice Marshall emphasized only that the merchant and ship-owner should each this doctrine by asserting broadly that "no court in use reasonable dispatch in performing his part. the universe which professed to be governed by princi- | The delay having bappened without fault on either ple would undertake to say that the courts of Great side, and neither having undertaken by contract, exBritain or of France, or of any other nation, had mis. press or implied, that there should be no delay, the understood their own statutes, and therefore erect it-loss must remain where it falls." Clifford, J., in the self into a tribunal which should correct such misun- case of Davis v. Wallace, supra, intimates the same derstanding." A patent issued successively by Canada opinion. “Delay beyond that,” he says (i. e., the time and the United States, and afterward declared void necessary for unloading), “if occasioned by natural ab initio by a Canadian court, does not by that fact ex- cause over which the defendant bas no control, may pire in this country, but will be regarded as if it had perbaps be excused in a case where there is no express never existed in Canada at all.” Cir. Ct., Dist. N. J. contract as to time." See Carsanego v. Wheeler, 16 March, 1884. Bate Ref. Co. v. Gjllett. Opinion by | Fed. Rep. 248; Cross v. Beard, 26 N. Y. 85. Dist. Ct., Nixon, J.

S. D. N. Y. April 16, 1884. Fish v. One Hundred and SHIP AND SHIPPING

Fifty Tons of Brown Stone. Opinion by Brown, J. DEMURRAGE REASONABLE TIME--USAGE-STIPULATION.-Where goods are taken SHIP AND SHIPPING-DAMAGES-RECOUPMENT-DIon freight consigned to a consignee at a particular VISION OF COSTS. - Where a schooner was lost in a col. wharf, and there is either no bill of lading or the time lision with a steamer, occasioned by the fault of both, for delivery is not specified, and there is no contract and the damages were to be divided equally between on the subject, hold, that the obligation in respect to the owners of the two, held, that from the damages delivery is that each party shall use reasonable dili- otherwise due to the owners of the schooner, the owngence in performing his part to effect the delivery ; ers of the steamer might recoup half of the damages and that in the absence of any special usage of the recovered against the steamer by the owners of the port or of the trade neither will be liable to the other cargo that was lost with the schooner, because each party for any detention of the vessel arising from any cause is liable for that loss, according to the Atlas, 93 U. S. over which he has no control, and for which he is not 302. A recoupment of this sort has been allowed in in fault. Howe v. Woodruff, 20 Fed. Rep. 136, 137 ; several cases. See The Eleonora, 17 Blatchf. 88; LeonAylward y. Smith, 2 Low. 192. Where the bill of lad-ard v. Whitwill, 10 Ben. 638; The C. H. Foster, 1 Fed. ing is silent as respects the time in which the cargo is Rep. 733; In re Leonard, 14 id. 53; Atlantic Ins. Co. v. to be delivered, the only ground for holding the con- Alexandre, 16 id. 279; The Canima, 17 id. 271. Tbat signee liable is some fault on his part in the acceptance one vessel was wholly lost does not prevent a contriof the cargo.

Rodgers v. Forresters, 2 Camp. 483; | bution in case of mutual fault. The North Star, 106 Burmester v. flodgson, id. 488. If on the other hand U. S. 17; 1 Sup. Ct. Rep. 41. (2) Decree that costs be the bill of lading limits the time within which the de- equally divided, in a case where damages were equally livery is to be made, that limitation is construed in divided, even though the libellant's vessel was wholly maritime law as a stipulation for the benefit of the lost. The particular circumstance of each case slip, designed to cast upon the consignee all risk of goveru. I adhere to a remark that I made incident. detention beyond the stipulated period; and no cus- ally in The Mary Patten, 2 Low. 196, 199, that the gentoin of the port would be allowed to override such a eral rule, so far as there can be one, should, in the abstipulation. Randall v. Lynch, 2 Camp. 352; Philadel- sence of particular circumstances, give a libellant in a phin & R. R. Co. v. Northam, 2 Beu. 1; Gronstadt v. cause of collision his costs, though he recover but half Witthoff, 15 Fed. Rep. 265, 271. It is in the power of

his damages, where the loss is all on one side. Such the vessel always to provide against any loss on her has been the practice in the first and second Circuits part through detention from accidental causes at the of late years. The Austin, 3 Ben. 11; The Baltic, id. place of discharge, if such be the intention of the par- 195; The Paterson, id. 299; The City of Hartford, 7 ties, by inserting in the bill of lading the time within | id. 510; The William Cox, 3 Fed. Rep. 645; The Exwhich the cargo must be received, or by other familiar celsior, 12 id. 195; The Eleonora, 17 Blatcbf. 88. Cir. provisions,such as that the vessel shall have “dispatch,"Ct., Dist. Mass. April 29, 1884. The Hercules. Opiaor" quick dispatch," either of which would cast the risk ion by Lowell, J. of delay upon the consignee. Smith v. Sixty Thousand Feet of Yellow Pine Lumber, 2 Fed. Rep. 396; RHODE ISLAND SUPREME COURT Thacher v. Boston Gas-Light Co., 2 Low. 361; Davis v.

Wallace,3 Cliff. 123; Kearon v. Pearson, 7Hurl. & N.386;
One Thousand One Hundred Tons of Coal, 12 Fed. Rep.

DAMAGES SHERIFF - - ESCAPE — JUDGMENT PRIMA 185; Choate v. Meredith, 1 Holmes, 500; Bjorkquist v.

FACIE EVIDENCE. –In an action on the case agaiust a Steel Rail, 3 Fed. Rep. 717. But if none of these pre

sheriff for permitting the escape of a party arrested on cautious are taken by the carrier I see no ground upon original writ or mesne process, the measure of damages which the carrier can charge the consignee with a

is the damages actually sustained, and the amount of breach of duty where the detention has arisen from

the judgment recovered in the action in which the eg. causes of which neither has any control. In the case of Ford v. Cotesworth, L. R., 4 Q. B. 127, Blackburn, rebuttal by counter evidence adduced by the sheriff


cape is permitted is only prima facie evidence, open to J., savs (page 133): “Where the act to be done is one

Patterson v. Westervelt, 17 Wend. 543; Brooks v. in which both parties to the contract are to concur, and both bind themselves to the performance of it, Treasurer v. Weeks, 4 Vt. 215; Danforth v. Pratt, 9

Hoyt, 6 Pick. 468; Eaton v. Ogier, 2 Me. 46; State there is no principle on which, in the absence of a stip- Cush. 318; Arden v. Goodacre, 11 C. B. 371; Shuler v. ulation to that effect, either expressed by the parties Garrison,'5 W. & Serg. 455; Smith v. Hart, 1 Brer. or to be collected from what they have expressed, the 146; Spafford v. Goodell, 3 McLean, 97; Blodgett v. damage arising from an unforeseen impediment is to

Town of Brattleboro, 30 Vt. 579; Hootman v. Shriner, be cast by law on the one party more than on the

15 Ohio St. 43. Sheldon v. Upham. Opinion by Dur. other; and consequently we think that what is implied by law in such a case is not that either party (Decided April 5, 1884.)

fee, C. J. contracts that it shall be done within either a fixed or a reasonable time, but each contracts that he sball uso

*To appear in 14 Rhode Island Reports.


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